FCC indecency rules

While it’s clear the FCC didn’t have any qualms in pursuing the case that resulted in a $325,000 fine against WDBJ Roanoke, Va., it does raise practical questions for broadcasters in less unusual circumstances. For example, might the FCC find a station airing crowd shots at a live sporting event guilty of willful indecency because its monitoring equipment was not large enough to detect that a few members of the crowd were being over-enthusiastic in trying to draw the attention of the kiss-cam?

Fox has a point when it comes to indecency issues and the FCC: It’s a hodgepodge. But more to the point, considering what has been going on in other media, the FCC’s narrow focus on just TV seems foolish. You want change? Give the FCC even more authority — or none at all. But none of this in-between stuff.

As other broadcasters urged the FCC to ease up on indecency regulations, Fox urged it to quit regulating broadcast indecency altogether. “Fox urges the commission to conclude it is legally required and logically bound to cease attempting broadcast indecency limits once and for all,” Fox Entertainment Group and Fox Television Holdings said in a filing Wednesday. “Time and technology have moved inexorably forward, but the commission’s untenable effort to define indecent content through a hodgepodge of inconsistent and uneven rulings remain stuck in a bygone era.”

Friday afternoon the FCC granted a 30-day extension of the deadlines for submitting comments and reply comments in response to its public notice seeking input on whether the commission should make changes to its current broadcast indecency policies. Comments and reply comments were originally due on May 20 and June 18, respectively, but have now been extended to June 19 (comments) and July 18  (reply comments).

Angry about a proposal to relax the FCC’s rules regulating indecent content on broadcast television and radio, the Parents Television Council and Morality in Media are pressing Congress to stop the regulatory agency in its tracks.

Earlier this month we reported on an odd public notice soliciting comments about the FCC’s indecency policy. That notice has now been published in the Federal Register — but that doesn’t mean that the notice makes any more sense now than it did when it first appeared. In any event, the Federal Register publication establishes the deadlines for comments in response to the notice. Comments are due by May 20 and reply comments by June 18.

Just as he is about to exit, FCC chairman Julius Genachowski is setting up a question that will be left to his successor: Just how should the agency deal with a backlog of indecency complaints. Given the propensity for watchdog groups to complain that the agency is too lax, and broadcasters to sue the FCC for being too vague, it’s doubtful that any new policy will be anything other than a can of worms.

In the wake of last summer’s Supreme Court ruling upsetting FCC indecency procedures, the FCC said today that it would focus on “egregious cases,” while reviewing its policies with input from the public. It also said that it had cleared more than one million or 70% of the pending indecency complaints.

For Carter Phillips, the Supreme Court’s decision in FCC v. Fox was his third win of the week. The Sidley Austin partner, who represented Fox explains how he interpreted the Supreme Court’s decision that found the FCC’s rules were too vague because they failed to give broadcasters fair notice of what can air on TV.

In a unanimous decision, the U.S. Supreme Court ruled that it would like to have as little to do with the FCC’s broadcast indecency policy as possible. Rather than the momentous ruling on the constitutional future of broadcast indecency enforcement that advocates on all sides of the issue had hoped for, the mighty sound of the court punting on the constitutional issue reverberated throughout Washington. Unfortunately, by putting that decision off until another day, the Court leaves the waters of FCC indecency enforcement as murky (and chilling) as ever.

The Supreme Court today concluded only that broadcasters could not have known in advance that obscenities uttered during awards show programs and a brief display of nudity on an episode of ABC’s NYPD Blue could give rise to FCC sanctions. But the justices declined to issue a broad ruling on the constitutionality of the FCC’s indecency policy.

The Supreme Court today vacated the FCC’s rules on “fleeting expletives” and brief nudity, saying it had not given networks adequate notice of its policies and that they were overly vague. It ducked a decision on the broader issue of the constitutionality of the indecency rules.

The Supreme Court justices engaged in colorful give-and-take today with lawyers for the government and television networks over government regulation of the airwaves during hours when children are likely to be watching.

The U.S. Supreme Court on Tuesday will consider whether FCC policing of the airwaves for dirty words and images violates broadcasters’ rights.

The FCC on Wednesday filed its brief at the U.S. Supreme Court defending its actions against Fox and ABC programming it found to be indecent. The fact that the court is reviewing such disparate forms of indecency (fleeting expletives during live programming versus nudity during scripted programming) increases the likelihood of a broader ruling by the court regarding indecency policy, as opposed to a decision limited to the very specific facts of these two cases.

According to attorneys involved in the challenge to the FCC’s indecency enforcement regime, they should know by Monday, June 27, whether the Supreme Court will hear the FCC’s challenge to a lower court ruling that that regime is an unconstitutional restriction on free speech.

The Obama administration is seeking the Supreme Court’s review of appeals court rulings that threw out the FCC’s rules against the isolated use of expletives as well as fines against broadcasters who showed a woman’s nude buttocks on a 2003 episode of ABC’s NYPD Blue.